AN ACT to repeal §48-26-404, §48-26-405, §48-26-601, §48-26-602,
§48-26-901, §48-26-902, §48-26-1003, §48-26-1005, §48-26-1006
and §48-26-1007 of the Code of West Virginia, 1931, as
amended; to amend and reenact §48-26-202, §48-26-203,
§48-26-204, §48-26-205, §48-26-206, §48-26-301, §48-26-401,
§48-26-402, §48-26-403, §48-26-406, §48-26-603, §48-26-604,
§48-26-701, §48-26-1001, §48-26-1002 and §48-26-1004 of said
code; and to amend said code by adding thereto nine new
sections, designated §48-26-207, §48-26-208, §48-26-209,
§48-26-210, §48-26-211, §48-26-212, §48-26-213, §48-26-214 and
§48-26-408, all relating to the Family Protection Services
Board; revising definitions; adding definitions; revising
qualifications for membership on the board; adding two new
members to the board; clarifying that the two ex officio
members have voting privileges; prohibiting certain persons
from serving on the board at the same time as certain other
persons; providing for appointments for unexpired terms of
board members; providing appointments for members who become
disqualified; clarifying and expanding the board’s powers and
duties; requiring board to submit annual report to Governor
and Joint Committee on Government and Finance; authorizing
legislative rules; increasing the percentage of board funds
that may be used for administrative functions; authorizing the
board to develop formulas to direct funds to certain programs;
prohibiting programs from falsely representing that they are
licensed; authorizing the board to develop preliminary and
full application forms; requiring board to respond in writing
within certain time after receiving preliminary and full
applications; providing for conditional, provisional and full
licenses; allowing certain entities to provide support to
programs in certain situations; authorizing the board to issue
licenses for up to three years; updating provisions related to
the closure of programs; authorizing the board to issue
notices to cease and desist and seek injunctive relief in
certain situations; setting forth procedures for hearings and
appeals; clarifying the uses of the Domestic Violence Legal
Services Fund; requiring programs to report annually to the
board; updating confidentiality protections for programs
participants; updating provisions related to monitored
parenting and exchange programs; providing that judges and
magistrates may order persons to participate in a monitored
parenting and exchange program; and allowing monitored
parenting and exchange programs to receive referrals.

Be it enacted by the Legislature of West Virginia:

That §48-26-404, §48-26-405, §48-26-601, §48-26-602,
§48-26-901, §48-26-902, §48-26-1003, §48-26-1005, §48-26-1006 and
§48-26-1007 of the Code of West Virginia, 1931, as amended, be
repealed; that §48-26-202, §48-26-203, §48-26-204, §48-26-205,
§48-26-206, §48-26-301, §48-26-401, §48-26-402, §48-26-403,
§48-26-406, §48-26-603, §48-26-604, §48-26-701, §48-26-1001,
§48-26-1002 and §48-26-1004 of said code be amended and reenacted;
and that said code be amended by adding thereto nine new sections,
designated §48-26-207, §48-26-208, §48-26-209, §48-26-210,
§48-26-211, §48-26-212, §48-26-213, §48-26-214 and §48-26-407, all
to read as follows:

That §48-26-404, §48-26-405, §48-26-601, §48-26-602,
§48-26-901, §48-26-902, §48-26-1003, §48-26-1005, §48-26-1006 and
§48-26-1007 of the Code of West Virginia, 1931, as amended, be
repealed; that §48-26-202, §48-26-203, §48-26-204, §48-26-205,
§48-26-206, §48-26-301, §48-26-401, §48-26-402, §48-26-403,
§48-26-406, §48-26-603, §48-26-604, §48-26-701, §48-26-1001,
§48-26-1002 and §48-26-1004 of said code be amended and reenacted;
and that said code be amended by adding thereto nine new sections,
designated §48-26-207, §48-26-208, §48-26-209, §48-26-210,
§48-26-211, §48-26-212, §48-26-213, §48-26-214 and §48-26-408, all
to read as follows:

“Batterer intervention and prevention program”, previously
referred to as a program of intervention for perpetrators, means a
licensed educational program that provides classes to individuals
who commit acts of domestic violence or abuse, offering nonviolent
strategies and values that promote respect and equality in intimate
partner relationships.

§48-26-204. Board defined.

“Board” means the Family Protection Services Board created
pursuant to Chapter 53 of the Acts of the Legislature of 1989 and
subsequently recodified by this article.

§48-26-205. Closure defined.

“Closure” means the temporary or permanent prohibition of
specified services and the corresponding suspension of licensure of
a program or program component that violates the standards
established by the board or that threatens the health, well being
or safety of its program participants or staff.

§48-26-206. Department defined.

“Department” means the Department of Health and Human
Resources.

§48-26-207. Domestic Violence Legal Services Fund defined.

“Domestic Violence Legal Services Fund” means the special
revenue account established by section six hundred three of this
article for the purposes set forth in that section.

§48-26-208. Domestic violence program defined.“Domestic violence program” means a licensed program of a
locally controlled nonprofit organization, established primarily
for the purpose of providing advocacy services, comprising both a
shelter component and an outreach component, to victims of domestic
violence, dating violence, sexual assault, stalking or human
trafficking, and their children: Provided, That the board may
temporarily or permanently close either the shelter component or
the outreach component of a domestic violence program.

§48-26-209. Family Protection Fund defined.

“Family Protection Fund” means the special revenue account
established by Chapter 74 of the Acts of the Legislature of 1981,
held by the department, for the purpose of collecting marriage
license fees pursuant to section ten, article one, chapter
fifty-nine of this code, divorce surcharge fees pursuant to section
twenty-eight-a, article one, chapter fifty-nine of this code, fees
for failure to present a premarital education course completion
certificate pursuant to section ten, article one, chapter
fifty-nine of this code and any other funding source, including any
source created in another section of this code, and distributed to
licensed domestic violence programs, in accordance with the formula
designated by the board.

§48-26-210. Intimate partner defined.

“Intimate partner” means a current or former spouse, a person
with whom one shares a child in common, a person with whom one is
cohabiting or has cohabited, or a person with whom one is or has
been in a relationship of a romantic or intimate nature.

§48-26-211. Licenses defined.

(a) “Conditional license” means a license issued for up to
ninety days, to programs that have violations of safety or
accountability standards that may threaten the health, well-being
or safety of its program participants or staff, or the responsible
operation of the program, or that have a history or pattern of
noncompliance with established standards.

(b) “Provisional license” means a license issued for up to
one hundred and eighty days, to programs that are not in compliance
with nonlife threatening safety, programmatic, facility or
administrative standards, that may be extended for an additional
six months, if the board determines that the program is making
active progress toward compliance.

(c) “Full license” means a license issued for up to the
maximum licensure period of three years, to programs that are in
compliance with the standards established by the board and have no
violations of safety or accountability standards that may threaten
the health, well-being or safety of its program participants or
staff, or the responsible operation of the program.

§48-26-212. Monitored parenting and exchange defined.

(a) “Monitored parenting” means the contact between a parent
without custodial responsibility,guardian or other adult and one
or more children, in the presence of a third person who monitors
the contact to promote the safety of the participants.

(b) “Monitored exchange” means the observation of movement of
a child or children from the custodial responsibility of one parent
or guardian to the custodial responsibility of the other parent or
other adult without allowing contact between the adults.

(c) “Monitored parenting and exchange program” means a
licensed program offered by a locally controlled nonprofit
organization for purposes of providing a neutral, safe and
child-friendly environment to allow the child or children access to
a parent or other adult without allowing contact between the
adults.

§48-26-213. Outreach defined.

“Outreach” means a licensed domestic violence program’s
community-based activities that increase awareness and availability
of services, in every county within the program’s regional service
area, to victims and survivors of domestic violence, dating
violence, sexual assault, stalking or human trafficking, and their
children.

§48-26-214. Shelter defined.

“Shelter” means residential services offered by a licensed
domestic violence program on a temporary basis, to persons who are
victims of domestic violence, dating violence, sexual assault,
stalking or human trafficking, and their children.

PART III. FAMILY PROTECTION SERVICES BOARD.

§48-26-301. Family protection services board continued; terms.

(a) The family protection services board, is continued.

(b) Membership of the board is comprised of seven persons.
The Governor, with the advice and consent of the Senate, shall
appoint five members of the board who meet the following
qualifications:

(1) One member must be a director of a licensed domestic
violence program;

(2) One member must be a representative of the West Virginia
Coalition Against Domestic Violence;

(3) One member must be a representative of a batterer
intervention and prevention program licensed by the board;

(4) One member must be a representative of the West Virginia
Supreme Court of Appeals who is familiar with monitored parenting
and exchange program services; and

(5) One member must be a citizen who is a resident of this
state and who is not employed by, under contract with or a
volunteer for a program licensed by the board, and who is
knowledgeable about services for victims and survivors of domestic
violence;

(c) The secretary of the Department of Health and Human
Resources, or his or her designee, and the chair of the Governor’s
Committee on Crime, Delinquency and Correction, or his or her
designee shall serve as ex officio voting members.

(d) The terms of the five members appointed by the Governor
are for three years, staggered in accordance with prior enactments
of this act.

(e) No person who is employed by, under contract with or
volunteers for an organization that is licensed to operate any
program under the provisions of this article may serve on the board
at the same time as another person who is employed by, under
contract with or volunteers for that organization.

(f) If a member resigns or is unable to complete his or
her term or ceases to be qualified, the Governor shall appoint
within ninety days a person who meets the qualifications of this
section to serve the remainder of the unexpired term.

PART IV. DUTIES OF FAMILY PROTECTION SERVICES BOARD.

§48-26-401. Powers and duties of board.

(a) The board shall:

(1) Propose rules for legislative approval, in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to implement the provisions of this article and any
applicable federal guidelines;

(4) Conduct licensure renewal reviews of domestic violence
programs, batterer intervention and prevention programs and
monitored parenting and exchange programs, that will ensure the
safety, well-being and health of the programs’ participants and
staff;

(5) For each fiscal year, expend from the Family Protection
Fund a sum not to exceed fifteen percent for the costs of
administering the provisions of this article, and direct the
Department of Health and Human Resources to distribute one half of
the remaining funds equally and the other half of the remaining
funds in accordance with a formula determined by the board, to
licensed domestic violence programs;

(6) Submit an annual report on the status of programs licensed
under the provisions of this article to the Governor and the Joint
Committee on Government and Finance;

(7) Conduct hearings as necessary under this article; and

(8)Collect data about licensed programs for use in the annual
report of the board.

(b) The board may:

(1) Advise the Secretary of the Department of Health and Human
Resources and the Chair of the Governor’s Committee on Crime,
Delinquency and Correction on matters of concern relative to their
responsibilities under this article;

(2) Delegate to the Secretary of the Department of Health and
Human Resources such powers and duties of the board as the board
considers appropriate to delegate, including, but not limited to,
the authority to approve, disapprove, revoke or suspend licenses;

(3) Advise administrators of state or federal funds of
licensure violations and closures of programs; and

(4) Exercise all other powers necessary to implement the
provisions of this article.

(a) No domestic violence program, batterer intervention and
prevention program or monitored parenting and exchange program may
represent that it is licensed unless it is licensed by the board
pursuant to the provisions of this article and the legislative
rules promulgated pursuant to this article.

(b) The board shall establish preliminary application and full
application forms for the initial licensing of domestic violence
programs, batterer intervention and prevention programs and
monitored parenting and exchange programs.

(1) To meet basic eligibility requirements an applicant for
licensure must complete a preliminary application form to
demonstrate local need for the proposed service, method of
governance and accountability, administrative and programmatic
design, and fiscal efficiency. The board shall respond in writing
within sixty days of receipt of the preliminary application;

(2) If the board approves the preliminary application, the
applicant may complete a full application form;

(3) The board shall determine whether all documentation set
forth on the licensure checklist has been submitted, and may
request supplemental or clarifying information or documentation;
and

(4) The board shall grant or deny a license within sixty days
of the receipt of the completed full application form and all
supplemental or clarifying information or documentation requested
by the board.

(c) Licenses may be granted or renewed for periods not to
exceed three years: Provided, That the board may conduct licensure
reviews at any time during the licensure period, and may downgrade,
suspend or revoke a license in accordance with the provisions of
this article.

(d) The license granted by the board shall be prominently
displayed by the licensees.

(e) The board may grant a provisional licensefor up to one
hundred and eighty days, to a program that is not in compliance
with non-life threatening safety, programmatic, facility or
administrative standards. A provisional license may be extended
for up to an additional one hundred and eighty days, if the board,
in its sole discretion, determines that the program is making
active progress toward compliance.

(f) The board may grant a conditional license for up to ninety
days to a program that has violations of safety or accountability
standards that may threaten the health, well-being or safety of its
participants or staff, or the responsible operation of the program,
or that have a history or pattern of noncompliance with established
standards. If a program does not correct the violations within the
conditional license period, the board may institute closure
proceedings.

(g) The Department of Health and Human Resources, the Division
of Justice and Community Services, the Family Protection Services
Board, the WV Coalition Against Domestic Violence, the West
Virginia Supreme Court of Appeals and the Division of Corrections
may, collectively or in any combination as appropriate to the
program, collaborate to provide technical assistance to prevent and
resolve deficiencies in a program’s ability to meet the standards
to operate and maintain licensure.

(h) If the board obtains information that a person or persons
has engaged in, is engaging in or is about to engage in an act that
constitutes or will constitute a violation of the provisions of
this article or the legislative rules promulgated pursuant to this
article, it may issue a notice to the person or persons to cease
and desist the act, or apply to the circuit court for an order
enjoining the act. Upon a showing that the person has engaged, is
engaging or is about to engage in such an act, the court may order
an injunction, restraining order or other order as the court
considers appropriate.

§48-26-403. Legislative rules.

(a) The board shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to effectuate the provisions of this
article.

(A) Domestic violence programs, including requirements for
both shelter and outreach components;

(B) Community-based, local government and Division of
Corrections batterer intervention and prevention programs; and

(C) Monitored parenting and exchange programs; and

(3) A licensure checklist to determine the ability of
applicants and licensees to meet licensure standards, to determine
eligibility for a full license, provisional license, conditional
license or no license.

(c) The rules in effect as of the effective date of the
reenactment of this section will remain in effect until modified,
amended or repealed provided that they are not inconsistent with
this article.

§48-26-406. Closure of programs.

(a) The board may close any program that violates the
standards established under this article or that threatens the
health, well-being or safety of its participants or staff:
Provided, That if a shelter is closed, the governing body of the
program, in conjunction with the board, shall establish a plan to
place the participants in other shelters or alternative housing.

(b) In order to close a domestic violence program or one of
its components, a batterer intervention and prevention program or
a monitored parenting and exchange program, the board must vote
unanimously in the affirmative.

(c) If either the sheltercomponent or the outreach component
of a domestic violence program is closed, the remaining component
of the program may continue to be licensed and to receive funds.

§48-26-408. Hearing procedures; judicial review.

(a) When a license for a program is downgraded or discontinued
through permanent or temporary closure, the program’s governing
body is entitled to a hearing before the board.

(b) Hearings shall be held in accordance with the provisions
of article five, chapter twenty-nine-a of this code.

(c) The board may conduct the hearing or elect to have a
hearing examiner or an administrative law judge conduct the
hearing. If the hearing is conducted by a hearing examiner or an
administrative law judge:

(1) The hearing examiner or administrative law judge shall be
licensed to practice law in this state and shall conform to the
Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;

(2) At the conclusion of a hearing, the hearing examiner or
administrative law judge shall prepare a proposed written order
containing recommended findings of fact and conclusions of law and
may include recommended sanctions, including closure, if the board
so directs;

(3) The board may accept, reject, modify or amend the
recommendations of the hearing examiner or administrative law
judge; and

(4) If the board rejects, modifies or amends the
recommendations, the board shall state in the order a reasoned,
articulate justification based on the record for the rejection,
modification or amendment.

(d) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may also
be made by the board by stipulation, agreed settlement, consent
order or default. Further, the board may suspend its decision and
place a license on conditional or provisional status.

(e) A licensee adversely affected by a decision of the board
entered after a hearing may seek an appeal to the Circuit Court, in
accordance with the provisions of section four, article five,
chapter twenty-nine-a of this code, and may appeal a decision of
the Circuit Court to the West Virginia Supreme Court of Appeals, in
accordance with the provisions of article six, chapter
twenty-nine-a of this code.

PART VI. FUNDING.

§48-26-603. Domestic Violence Legal Services Fund.

(a) There is continued in the State Treasury a special revenue
account, designated as the “Domestic Violence Legal Services Fund,”
that shall be an appropriated fund for receipt of grants, gifts,
fees, or federal or state funds designated for legal services for
domestic violence victims. Expenditures from the fund shall be
limited to attorneys employed or contracted by licensed domestic
violence programs, or employed or contracted by West Virginia’s
federally designated legal services program, its successor
organization or other nonprofit organization as determined by the
department, that establish a collaborative relationship with a
licensed domestic violence program, to provide civil legal services
to victims of domestic violence.

(b) Any court of this state may order a nonprevailing party to
pay an amount equivalent to the reasonable attorney’s fee to which
the prevailing litigant would be entitled into the Domestic
Violence Legal Services Fund, established in subsection (a) of this
section, if the following circumstances occur:

(1) A prevailing litigant is entitled by statute or common law
to a reasonable attorney’s fee, and

(2) The prevailing litigant’s legal counsel informs the court
that no fee will be requested.

§48-26-604. Annual reports of licensed programs.

(a) All programs licensed pursuant to this article shall
report specific information annually as required by the board.

(b) No information contained in a report may identify any
person served by the program or enable any person to determine the
identity of any such person.

PART VII. CONFIDENTIALITY.

§48-26-701. Confidentiality.

(a) No program licensed pursuant to this article may disclose,
reveal or releaseor be compelled to disclose, reveal or release,
any written records or personal or personally identifying
information about a program participant created or maintained in
providing services, regardless of whether the information has been
encoded, encrypted, hashed, or otherwise protected, pursuant to
this article except:

(1) Upon written consent, or upon oral consent in emergency
situations defined by legislative rule, of the person seeking or
who has sought services from the program;

(2) In any proceeding brought under sections four and five,
article six, chapter nine of this code or article six, chapter
forty-nine of this code;

(3) As mandated by article six-a, chapter forty-nine and
article six, chapter nine of this code;

(4) Pursuant to an order of any court based upon a finding
that said information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the
confidentiality established by this section;

(5) To protect against a clear and substantial danger of
imminent injury by a person receiving services to himself or
herself or another; or

(6) As authorized by the releases signed by batterer
intervention and prevention program participants pursuant to the
provisions of subsection (b) of this section.

(b) Batterer intervention and prevention program participants
shall authorize the release of information by signing the following
releases:

(1) Allowing the provider to inform the victim or alleged
victim and the victim’s advocates that the batterer is
participating in a batterer intervention and prevention program
with the provider and to provide information to the victim or
alleged victim and her or his advocates, if necessary, for the
victim’s or alleged victim’s safety;

(2) Allowing prior and current service providers to provide
information about the batterer to the provider;

(4) Allowing the provider to report to the court, if the
participation was court ordered, and to the victim or alleged
victim, if she or he requests and provides a method of
notification, and to his or her advocate, any assault, failure to
comply with program requirements, failure to attend the program,
threat of harm by the batterer, reason for termination and
recommendations for changes in the court order; and

(5) Allowing the provider to report to the victim or alleged
victim, or his or her advocate, without the participant’s
authorization, all perceived threats of harm, the participant’s
failure to attend and reason for termination.

(c) Monitored parenting and exchange programs may disclose to
one parent or guardian, without the permission of the other parent
or guardian, any perceived threat of harm or violation of the court
order or violation of the monitored parenting and exchange program
rules by the other parent or guardian.

(d) No monitored parenting and exchange program may release
information about the child without consent of the parent with
custodial responsibility or guardian.

(e) In addition to the provisions set forth in this section,
the release of a victim’s personally identifying information is
subject to the provisions of 42 U.S.C. § 13925(b)(2).

(f) No consent or authorization for the transmission or
disclosure of confidential information is effective unless it is
signed by the program participant whose information is being
disclosed. Every person signing an authorization shall be given a
copy.

(g) A victim of domestic violence, dating violence, sexual
assault, or stalking shall not be required to provide consent to
release his or her personally identifying information as a
condition of eligibility for the services, nor may any
personally-identifying information be shared in order to comply
with federal or state reporting, evaluation, or data collection
requirements: Provided, Thatnothing in this section prohibits a
program from reporting suspected abuse or neglect, as defined by
law, when the program is mandated by law to report suspected abuse
or neglect.

PART X . MONITORED PARENTING AND EXCHANGE PROGRAMS.

§48-26-1001. Court orders; use of monitored parenting and
exchange programs without court order.

(a) Judges and magistrates may order persons to apply to a
licensed monitored parenting and exchange program for monitored
parenting or monitored exchange of children: Provided, That a
licensed monitored parenting and exchange program may not be
required to perform duties that are beyond the program’s capacity
or scope of services.

(b) Judges and magistrates may require a person to pay a
reasonable amount based on ability to pay and other relevant
criteria for any fee charged by a monitored parenting and exchange
program.

(c) Licensed monitored parenting and exchange programs may
receive referrals from judges, magistrates, child protective
services, attorneys and other agencies, for services under the
terms and conditions of those services as set forth in rules
promulgated by the board.

(d) Licensed monitored parenting and exchange programs may
serve self-referrals when the adult parties agree to the use of the
program.

§48-26-1002. Exclusions. The provisions of this part do not apply to therapeutic or
supervised visitation or exchanges or any activity conducted by the
state or others in abuse and neglect proceedings pursuant to
articles six and six-a, chapter forty-nine of this code in which
assessment, evaluation, formulation of a treatment plan, case
management, counseling, therapy or similar activities occur.

§48-26-1004. Contract by persons using program.

Every program shall require that the parent, guardian or other
adult sign a written contract prior to using the program and that
the use of the services provided by the program can be terminated
by the program for violation of the contract.